Case Note & Summary
The High Court of Judicature of Bombay at Aurangabad dealt with a criminal writ petition challenging the appellate order dated 18-08-2011 passed by the Principal Secretary, Home Department, Mantralaya, which confirmed an externment order against the petitioner under the Bombay Police Act, 1951. The externment proceedings began with a show-cause notice dated 17-04-2010 issued under Section 59(1) of the said Act, seeking explanation regarding allegations against the petitioner. The petitioner replied on 15-01-2010, and after hearing, the Sub-Divisional Magistrate, Selu, passed an externment order on 03-03-2011. The petitioner appealed under Section 60 of the Act, but the appellate authority rejected it on 18-08-2011. The petitioner then approached the High Court. The core legal issues were whether the appellate authority’s order was vitiated by considering extraneous material not disclosed in the show-cause notice, and by failing to consider the acquittals of the petitioner in the criminal cases that formed part of the grounds for externment. The petitioner’s counsel argued that two out of four criminal cases relied upon by the appellate authority (Crime Nos. 108/2008 and 3018/2008 under various sections of IPC and the SC/ST Act) were never mentioned in the show-cause notice, thus constituting extraneous material. Relying on the Division Bench ruling in Ganu v. M.V. Chitale, the counsel contended that such reliance vitiated the externment order. The State conceded this factual position and the legal proposition. Further, the petitioner pointed out acquittals in the other two cases (Crime Nos. 32/2008 and 59/2008), with specific mention of acquittal in Crime No. 59/2008 in the reply to the show-cause notice. The appellate authority, however, did not consider these acquittals or give reasons, despite the petitioner’s submission. The High Court observed that the appellate authority merely noted the criminal cases but did not apply its mind to the acquittals, which was incumbent. Following Abdul Kadir Razzaque Beg v. Sub-Divisional Magistrate, Nashik, the Court held that such omission exhibited non-application of mind and rendered the order mechanically confirmatory. Consequently, the Court quashed the appellate order dated 18-08-2011, set aside the confirmed externment, and allowed the writ petition. The decision emphasized procedural safeguards in externment proceedings under the Bombay Police Act, 1951, requiring strict adherence to the contents of the show-cause notice and a reasoned consideration of acquittals by the appellate authority.
Headnote
A) Bombay Police Act, 1951 - Externment Proceedings - Section 59(1) - Show-Cause Notice Must Contain All Material - Order Based on Extraneous Material Not Mentioned in Notice is Illegal - In externment proceedings under the Bombay Police Act, 1951, a show-cause notice under Section 59(1) must set out the material forming the basis of the proposed action; the authority cannot rely upon crimes not disclosed therein. The Division Bench decision in Ganu v. M.V. Chitale, 1988 Cri.L.J. 1547, holding that reliance on extraneous material vitiates the externment order, was followed - Held, the externment order and its confirmation were vitiated due to procedural illegality (Paras 6-8). B) Criminal Procedure - Externment Appeals - Section 60 Bombay Police Act, 1951 - Appellate Authority Must Consider Acquittals and Apply Mind - Non-Consideration Amounts to Mechanical Order - An appellate authority under Section 60 of the Bombay Police Act, 1951, reviewing an externment order must examine the acquittals in connected criminal cases, consider the petitioner's reply bringing such acquittals to notice, and give reasoned finding on whether the acquittals affect the gravity of allegations of spreading terror. Failure to do so constitutes non-application of mind and renders the order unsustainable - Held, following Abdul Kadir Razzaque Beg v. Sub-Divisional Magistrate, 1999(1) Mh.L.J. 474, the appellate order was quashed (Paras 9-10).
Issue of Consideration
Whether the appellate order confirming externment was valid when based on extraneous material and without considering acquittals in connected criminal cases.
Final Decision
The High Court allowed the petition, quashed the appellate order dated 18-08-2011 passed by the Principal Secretary, Home Department, Mantralaya, and set aside the confirmation of externment. Rule made absolute. The writ petition disposed off accordingly.
Law Points
- Extraneous material not in show-cause notice cannot be basis for externment order or confirmation
- non-application of mind in confirming externment without considering acquittals renders order illegal.
